Three days after President Trump announced his candidacy for  the White House, Attorney General Garland wheeled on the former president and announced his intention to appoint a special counsel to handle the two major investigations against him.

The prosecutor tapped for the job is John “Jack” Smith. Of the cases in his remit, one involves documents discovered at Mar-a-Lago. The other relates to Mr. Trump’s actions relating to January 6. The appointment comes after months of speculation as to whether Mr. Garland would make the decision to hand down charges himself.  

Mr. Smith will come to the work from the Hague, where he has been serving at the International Criminal Court, a body of which America is not a member. Prior to that, Mr. Smith served as a prosecutor in the Eastern District of New York and as chief of the Public Integrity Section at the Department of Justice. He was a federal prosecutor at Nashville.  

In tapping the man whose task it was to investigate and prosecute war criminals for crimes committed in Kosovo during the genocide there, Mr. Garland commented that such an “appointment underscores the department’s commitment to both independence and accountability in particularly sensitive matters.”

Mr. Smith will be the third special counsel appointed in recent years in connection with Mr. Trump. In 2017, the deputy attorney general, Rod Rosenstein, tapped Robert Mueller to investigate the “Russian government efforts to influence the 2016 presidential election.” 

In the closing days of Mr. Trump’s tenure, Attorney General Barr granted John Durham the “powers and independence” of the special counsel position to investigate the investigators, meaning the FBI. Mr. Durham’s work continued into the Biden presidency, yielding one guilty plea and a rash of acquittals. 

All the appointments were highly political, designed to stymie either Mr. Trump or his successor. While the ultimate decision to prosecute will remain Mr. Garland’s as long as he is America’s chief law enforcement officer, Mr. Smith’s appointment could provide him with significant insulation should Mr. Trump retake the White House. 

Federal law dictates that a special counsel is not “subject to the day-to-day supervision of any official” at DOJ. He can be  “disciplined or removed from office only by the personal action of the Attorney General,” who can fire the special counsel only for “misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause.”

That law, however, appears, at least to some, to be vulnerable to attack as unconstitutional. That’s because it hampers the ability to fire the special counsel at will, an authority that appears in the plain language of the Constitution, which grants to only the president the responsibility to take care that the laws are faithfully executed. 

A special counsel is deemed warranted when regulatory prosecutorial processes would present a “conflict of interest,” and when the appointment would serve the “public interest.” The special counsel’s odd nature — of DOJ but not in it, independent but ultimately answerable to the attorney general — has engendered at least some half-hearted Supreme Court litigation. 

In a 1988 case, Morrison v. Olson, the justices ruled in a 7-to-1 decision that the investiture of a independent counsel — a predecessor to the special counsel — by the attorney general did not violate the Appointments Clause, which arrogates to the president the responsibility to “nominate” and “appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.”

The majority opinion, written by Chief Justice Rehnquist, also held that Congress’s role in formulating the law that set out the parameters of the independent counsel “does not violate the principle of separation of powers by unduly interfering with the Executive Branch’s role,” as it “does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch.”

This was seen by strict constructionists at the time as a shocking default by the Supreme Court. In dissent, Justice Antonin Scalia thundered that the case was about “power,” and that when it comes to the independent counsel, “the wolf comes as a wolf.”

In a famous exegesis, The Great Scalia quotes Article II of the national parchment to the effect that, “The executive Power shall be vested in a President of the United States.”

Scalia wrote that “this does not mean some of the executive power, but all of the executive power.” He argued that the “institution of the independent counsel enfeebles” the president “more directly in his constant confrontations with Congress, by eroding his public support” and giving a veneer of legitimacy to the accusation that counsel’s target is a “crook.”

The Independent Counsel Act, having been used against both Democrats and Republicans, was eventually allowed to expire without protest in Congress. Before it lapsed, it was used to appoint Ken Starr in the Whitewater probe.  

The use of so-called special counsels, such as Mr. Smith has now been made, is done under a different and renewed authority, promulgated by Attorney General Reno in 1999 in the Code of Federal Regulations.   

In a statement, Mr. Smith vowed that the “pace of the investigations will not pause or flag under my watch. I will exercise independent judgment and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate.”